January 2007: A Warmer Climate for the Federal Courts in the New Congress

What do the recent midterm elections and the Democratic takeover of Congress mean for the federal courts and the federal bar?

New Congressional Leadership
Sen. Patrick Leahy (D-Vt.) and Rep. John Conyers (D-Mich.) once again will chair the Senate and House Judiciary Committees that oversee the federal courts. Leahy and Conyers previously chaired the judiciary panels in the 1980s and 1990s, until the Republicans reclaimed the Congress in 1994. Both men are seasoned lawmakers, who have been respectful and supportive of the role and independence of the federal courts. Leahy, 66, a 32-year veteran of Congress, is expected to focus initially on legal aspects of the war on terror, including habeas corpus rights for enemy combatants. Conyers, 77, who will begin his 43rd year in Congress, is likely to continue to show strong interest in law enforcement oversight, particularly over the Department of Justice and the Federal Bureau of Investigation.

Less Antagonism with the Federal Courts
With the passing of the gavel in the House from the combative Rep. James Sensenbrenner (R-Wis.) to Rep. Conyers, less sparring with the federal courts and federal judges is likely on Capitol Hill—surely a welcome sign. Legislation to establish an inspector general for the federal judiciary is not expected to move in a Democratic Congress, nor are proposals to split the Ninth Circuit Court of Appeals. Culture wars and battles over social issues—such as gay marriage, abortion, and flag burning—are also expected to take a backseat.

More Moderate Court Nominees?
The loss of a Republican majority in the Senate is likely to force President Bush to nominate more moderate candidates to fill judicial vacancies—if he seriously intends to fill vacancies on the appellate courts and potentially the Supreme Court. The President, however, may refrain from pursuing that course and continue to gain points with the Republican base by promoting the candidacies of more conservative nominees. Senate Democrats, although holding only a 51–49 majority, may also be inclined to confirm far fewer candidates than the number confirmed during the first six years of the Bush presidency, creating vacancies that could be filled by a Democrat, if one is elected president in 2008. That dynamic also could hinder Democratic members’ interest in approving legislation to add more federal judgeships at the district and appellate levels, as proposed by the Judicial Conference and endorsed by the FBA.

New Priorities
Although neither Leahy nor Conyers have officially announced the agendas that they and their judiciary panels will pursue in 2007, several priorities are already well-known. Sen. Leahy is expected to reopen hearings on military tribunals of Guantanamo detainees and is likely to push for overhaul of the legislation the President signed into law only in October. Leahy has already indicated an interest in pursuing oversight and legislative remedial action on the 2003 "Thompson memorandum" on corporate prosecutions and attorney-client privilege waivers, in response to an aggressive lobbying attack by business interests and others, including former high-ranking Justice Department officials.

On the House side, Rep. John Conyers, as chair of the House Judiciary Committee, is likely to devote attention to the issue of military commissions, along with the Bush administration's controversial domestic surveillance program. Conyers and fellow Democrats have also called for election reform and want to examine the vulnerabilities of electronic voting. They also have indicated an interest in pursuing civil rights legislation to reverse recent Supreme Court restrictions on gender, disability, and age discrimination lawsuits, legislation to address alleged racial disparities in sentencing drug offenders, and the death penalty. Cocaine (crack versus powder) and sentencing policy is likely to draw special attention, especially in light of the Sentencing Commission’s latest look at the subject.

It is too early to forecast the prospects of a significant pay increase for the judiciary. Rep. Conyers has been open and receptive to a pay increase for the judiciary in the past, and the elevation of Rep. Steny Hoyer (D-Md.) to majority leader also is likely to be helpful. Judicial pay reform, wrapped in a larger package embracing a pay hike for federal executives, could sweeten the possibility. Clearly, if that happens, it will need to occur in 2007, before the dawn of the 2008 elections.